Hacohen v. Bolliger Ltd.

• Decision Date: 14 May 1985
• Citation: 108 A.D.2d 357,489 N.Y.S.2d 75
• Parties: , 41 UCC Rep.Serv. 1402 Alexander HACOHEN, Plaintiff-Respondent, v. BOLLIGER LTD., Bolliger Inc., and Bolliger Transport S.N.C., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 75

489 N.Y.S.2d 75

108 A.D.2d 357, 41 UCC Rep.Serv. 1402

Alexander HACOHEN, Plaintiff-Respondent, v. BOLLIGER LTD., Bolliger Inc., and Bolliger Transport S.N.C. Defendants-Appellants.

Supreme Court, Appellate Division First Department.

May 14, 1985.

Joanne Venino, New York City, of counsel (Bigham Englar Jones & Houston, New York City, attorneys) for defendants-appellants Bolliger Transport S.N.C. and Bolliger Ltd.

Richard M. Gates, New York City, of counsel (Gates, Singer, Deitsch, Goldberg & Fass, New York City, attorneys) for defendant Bolliger, Inc.

Leonard Steiner, New York City, of counsel (Arthur M. Unterman, New York City, with him on the brief; Steiner & Unterman, New York City, attorneys) for the plaintiff-respondent.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN and FEIN, JJ.

SANDLER, Justice.

In November 1978 Luigi Matassi, an Italian art dealer and plaintiff's assignor, arranged with defendant Bolliger Transport S.N.C., an Italian corporation (hereafter "Bolliger Transport") to ship two cases of stonework antiques, which were insured for $7,654, from Rome to Mr. Matassi's consignee, Dr. Edward Haddad, in Maryland. The shipment was picked up at JFK International Airport by Bolliger Transport's exclusive destination agent, Bolliger, Inc., a Connecticut corporation, for temporary storage in the latter's warehouse in Stamford, Connecticut pending delivery to Dr. Haddad. On January 5, 1979 Matassi wrote to a Mr. Lana of Bolliger Transport that the deal with Haddad was off, and requested that they hold the boxes and insure them for three months. Matassi said he was coming to New York to take possession of the boxes. This letter was answered by Gerry Lynch, the manager of Bolliger, Inc.'s "International Division" advising that they could not insure the contents of the cases, and suggesting that he should discuss with Mr. Lana the extension of the original policy to cover the period that the works were held in the warehouse.

The cases remained in storage at the Stamford warehouse until the middle of May 1979 when Matassi telephoned from New York City to Stephen Gerard, the president of Bolliger, Inc., and asked that the boxes be delivered to Matassi at 18 E. 76th Street in Manhattan. Delivery was made on May 16, 1979, at which time Matassi paid accumulated charges and signed a Bolliger, Inc. warehouse bill of lading containing a declared value of $.30 per pound per item unless otherwise declared by the shipper. Matassi had no success selling the stoneworks and shortly thereafter he requested that the two cases be returned to the Bolliger, Inc. warehouse at Stamford, Connecticut. The cases were again held in storage until Matassi directed Bolliger, Inc. to deliver the cases on June 8, 1979 to a Mrs. Hausmann, Matassi's agent, in Manhattan. Bolliger, Inc. was requested either by Matassi or Mrs. Hausmann to pick up the cartons and return them again to the warehouse.

On July 2, 1979 Mr. Matassi sold and assigned to the plaintiff Alexander Hacohen all right, title and interest in the property, described in the bill of sale as "Two cases containing Sixty-Three (63) art objects sculptured in semi-precious stones." The price stated in the bill of sale is 6,300,000 Italian Lire--equivalent to $7,654--the same amount set forth in the United States Customs Service Consumption Entry Certificate, and the insurance certificate. On September 5, 1979, Bolliger, Inc. received a telex from Costa Rica concerning a certain misdirected shipment of goods, which prompted a search for the two cartons being held for Matassi. The cartons were never found, a police and FBI investigation yielded no results, and to this date the disappearance of the cartons remains a mystery.

On October 6, 1980 plaintiff commenced an action to recover damages of $250,000 for alleged conversion, breach of contract and negligence against Bolliger, Inc., Bolliger Transport and Bolliger Ltd. It has recently been stipulated that Bolliger Ltd. is a "non-existent corporation" and that all references to that entity in the caption, summons and complaint are withdrawn and deleted. There is accordingly no purpose to be served by any further mention of that defendant's participation in the procedural history of this case.

In its answer, Bolliger, Inc. raised several affirmative defenses including, as here relevant, a limitation of liability to $7,654 due to plaintiff's failure to list a higher value, and inconvenient forum (CPLR 327). Bolliger Transport cross-claimed against Bolliger, Inc. Plaintiff moved for partial summary judgment against defendants on the issue of liability only, arguing in particular that the issue of liability in this case is governed by I.C.C. Metals v. Municipal Warehouse Co., 50 N.Y.2d 657, 431 N.Y.S.2d 372, 409 N.E.2d 849, i.e. that a warehouseman's unexplained failure to return stored property establishes a prima facie case of conversion rendering inapplicable a liability-limiting contractual provision. Special Term referred the matter to a special referee for hearing and report to enable the court to determine the issues of choice of law and inconvenient forum upon a full presentation of the relevant facts. Special Term thereafter granted plaintiff's motion to confirm the report of the special referee, declared that New York is a convenient forum for the case, that the law of the State of New York is applicable to resolve the parties' rights, granted plaintiff's motion for summary judgment against both defendants on the issue of liability only, reasoning that I.C.C. Metals controlled, and denied Bolliger Transport's cross motion for summary judgment. Thereafter, Bolliger, Inc. moved for reargument, its cross motion to disaffirm the special referee's report and to dismiss the complaint on the ground of inconvenient forum having been inadvertently misfiled by a clerk and not submitted to the court. Special Term granted reargument but adhered to its determination.

Turning first to the issue of inconvenient forum, it is firmly established that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed", Bata v. Bata, 304 N.Y. 51, 56, 105 N.E.2d 623, quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055. See also Olympic Corp. v. Societe Generale, 462 F.2d 376, 378 (2d Cir.). In this case the pick up and delivery of the property was initiated from and performed in New York City, and the warehouse bills of lading were signed by Mr. Matassi and Mrs. Hausmann in New York City. In addition, the plaintiff and several potential witnesses are New York residents. Upon these facts, we find no basis for disturbing Special Term's conclusion that New York is not an inconvenient forum for the trial of this action. Cf. Bader & Bader v. Ford, 66 A.D.2d 642, 414 N.Y.S.2d 132, app dism'd 48 N.Y.2d 649, 421 N.Y.S.2d 199, 396 N.E.2d 481.

We disagree however with Special Term's determination that New York law governs the rights of the parties upon the facts in this case. Plaintiff's action is essentially premised on the alleged conversion or negligence of a Connecticut corporation at a warehouse located in Connecticut. New York recognizes that "lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances." Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 699, 405 N.Y.S.2d 441, 376 N.E.2d 914. We find in this case no circumstances warranting a departure from this rule. Where, as here, it is the defendant's standard of conduct that is to be judged, "it is appropriate to look to the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders...." Bing v. Halstead, 495 F.Supp. 517, 520 (USDC, SDNY). We hold therefore that the law of Connecticut, not that of New York, is applicable in this case.

Applying Connecticut law, we conclude that partial summary judgment on the issue of liability must still be granted in favor of plaintiff as against Bolliger, Inc. on the issue of the latter's negligence. In Connecticut, "failure of a bailee to return goods delivered to him raises a presumption that their nonproduction is due to his negligence. Dejon v. Smedley Co., 108 Conn. 659, 667, 144 A. 473 Frissell v. John W. Rogers, Inc., 141 Conn. 308, 310, 106 A.2d 162, 163. "This presumption prevails unless and until the bailee proves the actual circumstances involved in the damaging of the property * * * The circumstances which the bailee must prove must be something more than those indicating the immediate cause of the...